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May 29, 2017, 10:56 AM
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"Taylor II" Case Status Updates (only)


This thread will be used for case updates only.

Discussion, which is certainly welcome, should take place in other threads. Thanks.

Here are the significant documents from the “Taylor II” case. The case challenges the FAA’s authority to create 14 C.F.R. 101.41, and the inclusion of all non-336 conforming activities within Part 107 - which requires testing and licensure, and is generally considered applicable to commercial operations.

It raises many of the same issues as the Taylor I case regarding whether model aircraft are properly “aircraft” under our statutory and regulatory scheme, whether the FAA has legislative authority to regulate low-altitude activities that don’t directly affect the traditional navigable airspace. It also challenges whether the FAA has acted arbitrarily and capriciously in adopting regulations which, in context with other existing laws, simply don’t make sense.

The Regulation:
https://www.gpo.gov/fdsys/pkg/FR-201...2016-15079.pdf

Taylor Brief:
http://bit.ly/2lhtjwQ

FAA Brief:
http://bit.ly/2qgooAl

Taylor Reply Brief:
http://bit.ly/2qeYVHo

The Reply Brief was filed on May 12, 2017. Based on the timing of other cases, I would expect that in October, the court will set it for oral argument in December. Of course, with the FAA reauthorization before Congress this summer, the case could be derailed by legislative action.

Again, please do not post comments, etc. in this thread, but feel free to post them elsewhere.

Thanks.
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Nov 08, 2017, 05:29 PM
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This case has been scheduled for oral argument on January 25, 2018.
Jan 25, 2018, 02:08 PM
Registered User
I argued the “Taylor II” case today before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, consisting of Judge Merrick Garland (Obama’s Supreme Court nominee) and two senior judges.

The case challenges the FAA bringing model aircraft under Part 101, and the vagueness/reasonableness of the standards to distinguish the need for hobbyists to comply with Part 107.

Key to my argument was the fact that Sec. 336 does not, itself, create duties of hobbyists. It only creates limitations on FAA authority. Within that authority, the FAA must still adopt regulations that are clear enough to be followed, and not arbitrary or capricious.

I argued that the CBO criteria in 336/101.41 are not clear enough for people to understand what is expected of them, and the FAA itself has said that the airport notification requirement creates a burden on airports, with no real benefit.

The FAA, in the rulemaking, acknowledged those are legitimate concerns raised by commenters, but deferred addressing them until some future time.

Agencies are required to consider relevant materials during the rulemaking process. They can’t simply defer reasoned decision making to some point down the road after the rule is adopted.

I had a great deal of difficulty convincing the court that while Sec. 336 is only a limitation on regulation, Part 101/107 creates new affirmative duties.

As oral argument in my first case leaned heavily in my favor, I think it’s clear this one leans heavily, probably more so, in the FAA’s favor. We’ll see.

I gave it my best. These issues are a marathon, not a sprint.

For a little light reading, here are the briefs:

Taylor Brief: http://bit.ly/2lhtjwQ
FAA Brief: http://bit.ly/2qgooAl
Taylor Reply Brief: http://bit.ly/2qeYVHo

Here’s the audio. My part starts at around 0:21:08 (a privacy-oriented organization filed a separate and unrelated petition); my rebuttal starts at 1:03:00:
https://www.cadc.uscourts.gov/recordings/recordings2018.nsf/3FCAC8D99D6DB1F7852582200063E4EB/$file/16-1297.mp3

My audio drops out for a while at one point for a while.
Last edited by JohnATaylor; Jan 25, 2018 at 06:38 PM.
Jan 25, 2018, 06:13 PM
Fire Marshall Bill
Go get em John
Jan 26, 2018, 12:20 PM
Commander, U.S. Navy (Ret.)
franklin_m's Avatar
John, any thoughts on possibility the court will at least shed some clarity on "...and within the programming?" I listened to your argument, and it seemed like it would have been easy to say "for example, does it mean you have to be a member?" Any reason why you didn't use that?
Jan 26, 2018, 09:30 PM
Registered User
Quote:
Originally Posted by franklin_m
John, any thoughts on possibility the court will at least shed some clarity on "...and within the programming?" I listened to your argument, and it seemed like it would have been easy to say "for example, does it mean you have to be a member?" Any reason why you didn't use that?
My goal was to demonstrate that it wasn’t reasonably clear (and thus unlawful), rather than to get the court to find, or impose, clarity.

I’m confident they would have dodged the membership question, same as they dodged the “within the programming” question.

I threw the latter out there, knowing they couldn’t answer it, simply to dominstrate it isn’t reasonably clear.
Mar 05, 2018, 11:44 AM
Registered User
How soon do you expect a decision?
Mar 12, 2018, 01:41 AM
Registered User
Quote:
Originally Posted by franklin_m
John, any thoughts on possibility the court will at least shed some clarity on "...and within the programming?" I listened to your argument, and it seemed like it would have been easy to say "for example, does it mean you have to be a member?" Any reason why you didn't use that?
The answer is yes.
Jul 07, 2018, 07:38 AM
Registered User
The U.S. Court of Appeals for the D.C. Circuit issued its opinion in this case yestereday: www.bit.ly/2NxuZBt

In short, I lost. The court did not vacate any aspect of the Part 101/Part 107 regulation.

The court did not add clarity, or compel the FAA to add clarity, to the vague criteria within Part 101/Sec. 336 - leaving it to the FAA to (some day) come up with meaningful standards (p.20-22). So basically, we're left to figure it out for ourselves and hope the FAA agrees with our interpretation. If we get it wrong, we're subject to incarceration.

Most strange to me was the court's satisfaction with the DOJ's representation that the FAA does not intend to hold SUAVs to the standards applicable to aircraft generally. (p.16). I'm quiet sure they won't stick to that.
Jul 07, 2018, 01:18 PM
Commander, U.S. Navy (Ret.)
franklin_m's Avatar
And if I read the opinion correctly, did they also affirm - indirectly - the FAAs logic that “model-aircraft” are indeed “unmanned-aircraft” that are a subset of “aircraft?”
Jul 07, 2018, 06:55 PM
Registered User
Mr. Taylor, your original registration thread is closed and all other related JohnATaylor RCGroups threads are
either outdated or dead ends, at least the ones I found. Could you post a link where this is current? Thanks.

Or anyone else.
Aug 09, 2018, 04:59 PM
RC Enthusiast
YarSmythe's Avatar
John - I tried to reach you through messaging but your box is full. Would you mind reaching out to me via "contact@rcroundtable.com" so I can email you directly? Thank you. -Lee
Latest blog entry: Warbirds Over JSC - April 2018


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